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"I Am Opposed to This Procedure": How Kafka's in the Penal Colony

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Pace University DigitalCommons@Pace Pace Law Faculty Publications School of Law 2015 "I Am Opposed to This Procedure": How Kafka's In the Penal Colony Illuminates the Current Debate About Solitary Confinement and Oversight of American Prisons Michael B. Mushlin Pace University School of Law, [email protected] Follow this and additional works at: http://digitalcommons.pace.edu/lawfaculty Part of the Criminal Law Commons, Human Rights Law Commons, Law and Society Commons, and the Law Enforcement and Corrections Commons Recommended Citation Michael B. Mushlin, "I Am Opposed to This Procedure": How Kafka's In the Penal Colony Illuminates the Current Debate About Solitary Confinement and Oversight of American Prisons, 93 Or. L. Rev. 571 (2015), available at http://digitalcommons.pace.edu/ lawfaculty/989/. This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law Faculty Publications by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. MUSHLIN (DO NOT DELETE) 3/25/2015 8:37 AM OREGON 2015 VOLUME 93 5 LAW NUMBER 3 REVIEW Articles MICHAEL B. MUSHLIN* “I Am Opposed to this Procedure”: How Kafka’s In the Penal Colony Illuminates the Current Debate About Solitary Confinement and Oversight of American Prisons * Professor of Law at Pace Law School. I express my gratitude to Spencer Lo, Class of 2012, for his deep insights and exceptional help in conceptualizing this paper and for his thoughtful feedback and suggestions. I also am grateful for the superb assistance of Tara Hamilton, Class of 2015; Jake Sher, Class of 2016; and Sarah Lusk, Class of 2016, Pace Law School; and Morris Zarif, Class of 2015, Brooklyn Law School. I presented a version of this Article at a faculty development session at Pace Law School in July 2014. I am grateful for the feedback and assistance that I received from my colleagues at that session. I am also grateful to Cynthia Pittson of the Pace Law Library for her exceptional help to me in identifying and locating sources necessary for the preparation of this Article. I thank Professors Don Doernberg, Thomas McDonnell, and Jason Parkin for their assistance. I also thank my friend Marshall Beil, Esq., for his careful reading of this paper and his excellent editorial suggestions. Of course, any errors are mine alone. [571] MUSHLIN (DO NOT DELETE) 3/25/2015 8:37 AM 572 OREGON LAW REVIEW [Vol. 93, 571 Abstract ............................................................................................ 572 Introduction ...................................................................................... 573 I. In the Penal Colony & Franz Kafka ...................................... 576 A. In the Penal Colony ........................................................ 576 B. Kafka .............................................................................. 581 1. The Workers’ Accident Insurance Institute for the Kingdom of Bohemia in Prague ............................... 585 2. Kafka’s Work at the Institute ................................... 587 a. Overview ............................................................ 587 b. Kafka’s Accident Prevention Work ................... 588 c. Summary of Kafka’s Professional Work Experience ......................................................... 593 II. In the American Penal System: Solitary Confinement and Lack of Systematic Oversight ............................................... 597 A. Solitary Confinement ..................................................... 599 B. Oversight of American Prisons and Jails ....................... 612 1. The Absence of Oversight ........................................ 612 2. Calls for Oversight ................................................... 613 3. Prison Administrators and Prison Oversight ............ 616 4. The Impact of Oversight ........................................... 618 5. Summary .................................................................. 625 III. The Lesson of In the Penal Colony ....................................... 625 ABSTRACT This is the 100th anniversary of Franz Kafka’s In the Penal Colony. The story brilliantly imagines a gruesome killing machine at the epicenter of a mythical prison’s operations. The torture caused by this apparatus comes to an end only after the “Traveler,” an outsider invited to the penal colony by the new leader of the prison, condemns it. In the unfolding of the tale, Kafka vividly portrays how, even with the best of intentions, the mental and physical well-being of inmates will be jeopardized when total control is given to people who run the prisons with no independent oversight. At the core of America’s vast prison system is the pervasive practice of solitary confinement, a practice that in many ways is analogous to the penal colony machine. Like the machine, it inflicts great psychological and often physical pain on people subjected to it. It, like the machine, is used to punish people for trivial offenses without due process. Like the machine, it is seen as essential to the operation of this closed prison system. Many of the new leaders of MUSHLIN (DO NOT DELETE) 3/25/2015 8:37 AM 2015] “I Am Opposed to this Procedure”: How Kafka’s In the Penal Colony 573 Illuminates the Current Debate About Solitary Confinement and Oversight of American Prisons American prisons want to reform solitary confinement practices, but like the new Commandant in Kafka’s tale, without oversight, these leaders operate in the dark, unable to effectuate meaningful change by themselves. Kafka knew what he was talking about. The historic record, reviewed in this Article, demonstrates that Kafka had a notable legal career as an attorney at the Workers’ Accident Insurance Institute for the Kingdom of Bohemia in Prague. In that job he worked on behalf of industrial workers to open closed worksites to oversight, thereby improving worker safety and preventing needless accidents. These experiences gave Kafka a realistic understanding of what can happen in closed, unregulated institutions such as prisons. Despite the relevance of In the Penal Colony, Kafka’s voice has not yet been heard in this debate. This Article is intended to fill that void and to reveal how Kafka’s profound insights, so artfully crafted in the powerfully beautiful prose of In the Penal Colony, help us understand why we must open prison doors to outside scrutiny and put an end to the gruesome practice that is solitary confinement. INTRODUCTION am opposed to this procedure.”1 These words, which are spoken by Ia traveler to an imaginary prison on an unnamed island, come at a critical moment in Franz Kafka’s masterpiece, In the Penal Colony.2 Written a century ago, in the heat of a writing frenzy during the 1 Franz Kafka, In the Penal Colony, in THE METAMORPHOSIS AND OTHER STORIES 125, 148 (Donna Freed trans., Barnes & Noble Books 1996). 2 The story was composed over a two-week period in October 1914, just two months after the commencement of the First World War, while Kafka was on vacation. CLAYTON KOELB, KAFKA: A GUIDE FOR THE PERPLEXED 118–19 (2010). The story, one of the few works of Kafka published during his lifetime, was published five years later in May 1919. Id. at 56; see also ERNST PAWEL, THE NIGHTMARE OF REASON: A LIFE OF FRANZ KAFKA 386 (1984). This was a time in Kafka’s life of “astonishing” productivity. KOELB, supra note 2, at 45; see also REINER STACH, KAFKA: THE DECISIVE YEARS 468–69 (Shelley Frisch trans., Harcourt, Inc. 2005) (2002) (This work claims that when Kafka wrote his work he “was standing at the threshold of the most productive period of his life . a burst of energy came to him. It was as though a curtain were opening.”). During this time, Kafka also began work on The Trial, though that work was not published during his lifetime. KOELB, supra note 2, at 45. There is some slight disagreement about the exact time he wrote In the Penal Colony. According to another biographer, it was “completed” in November 1914, not October 1914. RONALD HAYMAN, K: A BIOGRAPHY OF KAFKA 187 (1981). One scholar maintains that Kafka began writing In the Penal Colony on October 15, 1914, and finished it three days later. PAWEL, supra note 2, at 329. Kafka publicly read MUSHLIN (DO NOT DELETE) 3/25/2015 8:37 AM 574 OREGON LAW REVIEW [Vol. 93, 571 opening days of World War I, the words are a denunciation by the outsider of a machine that is operated by prison officials to torture, maim, and kill hapless prisoners. Until that decisive moment, the current progressive leader of the penal colony—the “new Commandant”—lacked the power to end the abuse. Written in another century by an author who had never set foot in the United States and, as far as research reveals, had never visited a prison,3 In the Penal Colony is as relevant today as it was when it was written. The story forcefully recounts the abuse that can occur when there is unrestricted power over prisoners, no matter how well- intentioned prison administrators may be.4 The story also highlights the importance of external oversight of prisons. In the story, the abuse that Kafka so vividly and gruesomely describes is only checked when the closed penal colony is opened to oversight. America’s prisons need oversight. At the core of America’s vast prison system5 is the pervasive practice of solitary confinement, a practice which inflicts great psychological and often physical pain on the people subjected to it.6 On any given day, at least 80,000 people are held in these harsh conditions, sometimes for periods that stretch for years and even decades, where they suffer in cruel and lasting the work at a literary event at the “avant-garde” art gallery, Goltz, in Munich, Germany, over the weekend of November 10, 1916. Id. at 350–51. The work was not well received at that reading. Id. at 351 (noting that the reading of In the Penal Colony itself “from all accounts, was a calamitous failure”). 3 I have uncovered no evidence that Kafka ever set foot in a prison. However, it is clear that Kafka was well aware of the abuses inflicted on imprisoned people of the Dreyfus affair and the penal colonies of French Guiana and Devil’s Island.
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